TMI Blog2017 (5) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the statutory period, under Section 139(5) of the Act, this Tribunal is of the considered opinion that it cannot be said that the assessee has concealed any part of income or furnished any inaccurate particulars of income. The statutory provision allows the assessee to file revised return whenever there was omission to disclose the income which is otherwise taxable under the Income-tax Act. In this case, after the survey operation, the assessee found there was omission to disclose the income otherwise taxable under the Income-tax Act and accordingly filed revised return within the statutory period and offered the same for taxation. Therefore, this Tribunal is of the considered opinion that it is not a fit case for levy of penalty un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The Ld.counsel for the assessee further submitted that the Delhi High Court in SAS Pharmaceuticals (supra), after referring to Section 271(1)(c) of the Act, found that penalty under Section 271(1)(c) of the Act can be imposed in the course of any proceeding under the provisions of Income-tax Act. The Delhi High Court after interpreting the word any proceeding under the Income-tax Act has observed that the satisfaction shall be of the Assessing Officer or of the Commissioner of Income Tax (Appeals) who levies the penalty. When there was a survey conducted by a team of officer, the question of satisfaction of Assessing Officer or Commissioner of Income Tax (Appeals) or Commissioner does not arise. According to the Ld. counsel, the As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 22.08.2016 and submitted that on identical set of facts, this Tribunal deleted the penalty levied by the Assessing Officer. 6. On the contrary, Shri Supriyo Pal, the Ld. Departmental Representative, submitted that the assessee claimed before the Assessing Officer that it co-operated with the Assessing Officer for completion of assessment. The assessee has also claimed before the Assessing Officer that the undisclosed income admitted during the survey operation was offered for taxation by means of revised return filed under Section 139(5) of the Act. According to the Ld. D.R., the Assessing Officer found bogus purchase through accommodation bills and suppression of sales were also found during the survey operation and the assessee a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1)(c) of the Act. The fact remains that the assessee filed revised return voluntarily under Section 139(5) of the Act. The return filed by the assessee was processed and the same was accepted by making a disallowance of ₹ 5,43,708/- under Section 40A(2)(a) of the Act. 8. The question now arises for consideration is when the survey team found that there was suppression of sales, and the assessee has filed revised return under Section 139(5) of the Act, whether there was concealment of income or the assessee has furnished inaccurate particulars of such income. This matter was examined by the Delhi High Court in SAS Pharmaceuticals (supra). In fact, the Delhi High Court has held as follows at paragraphs 13, 14 15 of its order:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious that the expression in the course of any proceedings under this Act cannot have the reference to survey proceedings, in this case. 15. It necessarily follows that concealment of particulars of income or furnishing of inaccurate particular of income by the assessee has to be in the income-tax return filed by it. There is sufficient indication of this in the judgment of this Court in the case of Commissioner of Income Tax, Delhi-I Vs. Mohan Das Hassa Nand 141 ITR 203 and in Reliance Petroproducts Pvt. Ltd. (supra), the Supreme Court has clinched this aspect, viz., the assessee can furnish the particulars of income in his return and everything would depend upon the income-tax return filed by the assessee. This view gets supported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Income-tax Act. In this case, after the survey operation, the assessee found there was omission to disclose the income otherwise taxable under the Income-tax Act and accordingly filed revised return within the statutory period and offered the same for taxation. Therefore, this Tribunal is of the considered opinion that it is not a fit case for levy of penalty under Section 271(1)(c) of the Act. 9. Furthermore, as found by Delhi High Court in SAS Pharmaceuticals (supra), the survey team found that the assessee has not disclosed its income by suppressing the sales turnover and also booking inflated purchases. The Delhi High Court found that satisfaction of survey team cannot be construed as proceeding under the Income-tax Act. Only the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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